An Initial Assessment of Standards in Technology Tort Litigation

Abstract

Standards are a central preoccupation of AI governance, yet the dominant policy conversation—focused on regulatory compliance and coordination—does not capture how standards actually function in the legal domain most likely to govern AI-related harms: tort law. This Article offers an empirical and doctrinal assessment of standards in technology tort litigation, surveying reported decisions to map how courts use standards across negligence and products liability contexts.

The central finding is that tort law consistently resists treating standards as dispositive. Compliance is almost never conclusive; noncompliance is rarely sufficient by itself. What matters is how a standard is used: what it is offered to prove, whether it applies to the defendant and the risk at issue, whether it reflects contemporaneous knowledge, and whether it is presented through reliable expert methodology. This pattern recurs across technological domains—from railroads and automobiles to medical devices and digital platforms—because tort law is structurally committed to contextual, fact-intensive evaluation rather than categorical rule-following.

These findings carry direct implications for AI. Because AI standards are emerging unusually early in the technological lifecycle—before stable engineering norms or accumulated accident experience exist—courts are unlikely to treat them as duty-defining baselines or safe harbors. Instead, they will enter tort litigation primarily as evidentiary tools: anchors for expert testimony, benchmarks for feasibility arguments, and reference points for evaluating warnings and governance practices.